Exergy Development Group of Idaho, LLC and James T. Carkulis v. High Power Energy, LLC

• Court: Court of Appeals of Texas
• Decided: January 20, 2015
• Docket: 14-14-00788-CV
• Status: Published

Opinion

ACCEPTED 14-14-00788-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/19/2015 7:51:10 AM CHRISTOPHER PRINE CLERK No. 14-14-00788-CV

COURT OF APPEALS FILED IN FOURTEENTH DISTRICT OF TEXAS 14th COURT OF APPEALS AT HOUSTON, TEXAS HOUSTON, TEXAS 1/20/2015 8:00:00 AM CHRISTOPHER A. PRINE Clerk EXERGY DEVELOPMENT GROUP OF IDAHO, LLC and JAMES T. CARKULIS,

Appellants

v.

HIGHER POWER ENERGY, LLC, BLUE RENEWABLE ENERGY, LLC and BLACK MOUNTAIN FINANCIAL CORP.,

Appellees.

Restricted Appeal from Cause No. 2012-67104 125th Judicial District Court ofHarris County, Texas Han. Kyle Carter, Presiding

APPELLEE'S RESPONSE TO APPELLANTS' MOTION TO REINSTATE APPEAL

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Higher Power Energy, LLC, Appellee herein and Plaintiff in Trial Court

Number 2012-67104, respectfully submits this Response to Appellants' Motion to

Reinstate Appeal, and shows as follows:

1. · Higher Power Energy, LLC respectfully submits that the Motion to

Reinstate Appeal this proceeding that has been filed by Appellants Exergy

Pagelof4 Development Group of Idaho, LLC and James T. Carkulis should be denied.

Specifically; this Motion should be denied for one or more of the following

reasons:

a. Back on October 1, 2014 this Honorable Court advised James

Carkulis, by way of letter that he was copied on, that the filing

fee that was associated with this Appeal was "due" and that

"payment arrangements" concerning this Appeal would need to

be made;

b. On October 14, 2014 this Honorable Court issued a Notice (to-

Carkulis) advising that the filing fee associated with this Appeal

had (still) not been paid, and that if this fee was not paid by

October 24,2014 the Appeal may be dismissed;

c. On October 30, 2014 this Honorable Court issued an Order

finding that the filing fee had (still) not been paid;

d. On that same date, this Honorable Court issued a Notice (that

Carkulis was copied on) specifically referencing payment for

the Clerk's Record;

e. On October 19, 2014 this Honorable Court sent notice to

Carkulis and counsel of record for Appellants (Seth Kretzer,

Esq.) advising that arrangements to pay for the Clerk's Record

Page2 of4 had not been made, that such arrangements must be made

within 15 days from that date, and that proof of payment must

be provided to this Court by that date;

f. Pursuant to the Notice referenced above, these payment

arrangements had to be made - and proof of payment had to be

tendered to this Honorable Court - by December 4, 2014.

They were not;

g. The Appellants did not make arrangements to pay for the

Clerk's Record until January 13, 2015 - five (5) weeks after

same was to be done (pursuant to the Court's November 19,

2014 Notice), and after this Honorable Court had dismissed

this Appeal.

2. The facts set forth above, and others that will be provided to this

Court (in the unlikely event that this Court elects to grant the Motion to Reinstate

Appeal) illustrate the complete, utter disregard that the Appellants have exhibited

for the parties in this case, the law applicable to this case, rulings made by the trial

court, and Notices/Orders that have been issued by this Honorable Court

throughout the course ofthis matter.

WHEREFORE, PREMISES CONSIDERED, Appellee Higher Power

Energy, LLC respectfully prays that this Response be received and filed and, upon

Page 3 of4 consideration, that the Appellants' Motion to Reinstate Appeal this case be denied

and for such further relief, both at law and in equity, to which it may show itself

justly entitled.

Respectfully submitted,

FEE, SMITH, SHARP & VITULLO, L.L.P

HOWARDJ.KLATSKY State Bar No. 00786024 Three Galleria Tower 13155 Noel Road, Suite 1000 Dallas, Texas 75240 (972) 934-9100 (972) 934-9200 [Fax] hklatsky@feesmith.com

ATTORNEY FOR APPELLEE HIGHER POWER ENERGY, LLC

CERTIFICATE OF SERVICE

Tms WILL CERTIFY that a true and correct copy of the foregoing instrument has been mailed, teleco~i~ or hand delivered to all attorneys of record in this cause of action on the J ~y ofJanuary, 2015, as follows:

ViaCMRRE Via First Class Mail James T. Carkulis Andrew M. Edison 14 West 40th Street, 4th Floor Edison, McDowell & Hetherington, LP Helena, Montana 59601 3200 Southwest Freeway, Suite 2100 Houston, TX 77027 ~--? >'""'(,..<...<- - HOWARD J. KLATSKY Page 4 of4